The new criminal procedure law stipulates that a criminal suspect may entrust a lawyer to defend him during the investigation stage. But with the status of defender, how to exercise the right of defense? Article 36 of the Criminal Procedure Law stipulates that: defense lawyers can provide legal aid to criminal suspects during investigation; Acting as an agent for complaints and accusations; Apply for changing compulsory measures; Ask the investigation organ about the crimes and cases suspected by the criminal suspect, and put forward opinions. The author believes that the exercise of criminal lawyers' right of defense in the investigation stage includes but is not limited to the following:
First of all, the most important right is the "right to meet". In Chinese mainland, most suspects are detained. Because of the internal and external isolation, the most urgent thing is for lawyers to meet the criminal suspects in the detention center and understand the situation inside. The criminal suspects who are detained inside are also eager to see lawyers and understand the situation outside. However, this basic right was difficult to realize in the past, and the case-handling organ will do everything possible to prevent lawyers from meeting. The author handled a triad-related case in Xuzhou a few years ago because of the obstruction of the public security organs. Although the lawyers tried their best to complain to various departments, they never saw the parties in the end. Fortunately, after the introduction of the new criminal procedure law, this "difficulty in meeting" has been improved.
According to the provisions of the new Criminal Procedure Law, defense lawyers can go to the detention center to go through the interview procedures with lawyer's practice certificate, law firm certificate, power of attorney or legal aid letter (crimes of endangering national security, terrorist activities and especially serious bribery crimes should be approved by the investigation organ, but there is no restriction). At the beginning of New Year's Day, when the new Criminal Procedure Law came into effect, the author went to Yichang No.1 Detention Center in Hubei Province to meet him because of a drug case. Although the case is still in the investigation stage, the detention center successfully handled the interview procedures for me after showing the lawyer's practice license, lawyer's meeting letter and power of attorney. In less than ten minutes, I will meet my client. It can be seen that the implementation of the new law is very effective.
About the contents of the lawyers' meeting. The author believes that the lawyer meeting in the investigation stage can't just stay on being caring and attentive. If you just ask if you are short of clothes, money and whether it is cold inside, you will waste your identity as a defense lawyer. It is true that in the past, some case-handling organs required lawyers not to ask questions about cases during the investigation stage, but this was illegal. Why did the lawyer come without asking about the case? The new criminal procedure law clearly stipulates that defense lawyers can understand the case and provide legal advice when meeting with criminal suspects in custody. Secondly, after understanding the basic situation of the case, we should provide relevant legal help to the criminal suspect, explain the legal provisions, inform him of the possible punishment, and dispel his concerns through the possible legal effects of defense. Third, criminal suspects should be informed of their litigation rights and personal rights. First, the right to sign the record after verification; Second, how to protect yourself in the case of extorting a confession by torture; Third, how to protect yourself if you encounter personal threats or injuries from other people in your discipline or cell; Fourth, if you want to see a lawyer, how to express it. These questions, which seem simple to lawyers, will play a great role after the criminal suspect enters the detention center, and sometimes they may be crucial.
Secondly, apply for bail pending trial. In Chinese mainland, once a criminal suspect is found guilty, most of them will be held in a detention center, which makes bail pending trial a common link in criminal cases. The original criminal procedure law stipulated that lawyers can only apply for bail pending trial for criminal suspects after they are arrested, but the new criminal procedure law abolished this restriction. Regarding the circumstances in which bail can be obtained pending trial, the new Criminal Procedure Law stipulates that:
1, may be sentenced to public surveillance, criminal detention or independent application of supplementary punishment;
2, may be sentenced to more than fixed-term imprisonment, taking bail pending trial will not cause social danger;
3. Suffering from serious illness, unable to take care of themselves, pregnant or nursing a baby, and taking bail pending trial will not cause social danger;
4, the detention period expires, the case has not yet been settled, and it is necessary to get a bail pending trial.
Although the conditions are stipulated, in practice, even in many qualified cases, it is still difficult to get bail pending trial, and no one will accept it even if money is required (the mystery can be found in my other article "Zhao-Li: Bail pending trial is a" strange "legal system" Baidu). Although it is difficult, as a basic right of lawyers, lawyers should apply to the case-handling unit for changing compulsory measures if they meet the requirements. In fact, if you master some of these skills, the success rate of applying for bail pending trial is still very high for some cases with minor crimes that may be sentenced to fixed-term imprisonment of less than three years (of course, the skills here do not include the so-called blending gifts, but refer to legal skills, see my "When can I apply for bail pending trial").
Third, acting as an agent for complaints and accusations. If the legitimate rights and interests of a criminal suspect are infringed upon in the process of handling a case, the defense lawyer may appeal and accuse on his behalf. The legitimate rights and interests of criminal suspects may be infringed upon by people, such as extorting confessions by torture from case handlers, "hiding from cats and dogs", "tying shoelaces" and "drinking cold water" to the staff of the discipline or the same prison. It may also come from property, such as illegal seizure of vehicles, illegal freezing of company property and so on. If the above situation occurs, the defense lawyer shall immediately file a complaint with the relevant authorities. The most direct organ is the procuratorate at the next higher level, and the most effective organ is the discipline inspection department or law and discipline department of the investigation organ at the same level or at the next higher level (including the procuratorate). In fact, infringement is not terrible, as long as you dare to sue and find the right place, "class struggle, catch it to the end." The author once represented a case in which a public security organ illegally seized the property of a typing agency. The case-handling personnel did not show their certificates or make a seizure list. At that time, the author wrote a written material to reflect to the discipline inspection department of the Municipal Bureau. As a result, the things were returned to the client the next day, and the effect was so fast that I was caught off guard.
Fourth, submit defense opinions. Although this is stipulated in the new criminal procedure law, I actually did it before the implementation of the new criminal procedure law. After understanding the basic situation of the case, lawyers will write their legal opinions into written materials and submit them to the case-handling organ. These written materials are still necessary, just as the lawyer's opinion is submitted during the examination and prosecution stage and the defense is submitted during the trial stage. In fact, not only the defense opinions can be submitted in writing, but also other materials, such as appeal materials, application for changing compulsory measures, application for investigation and evidence collection, and proposal for correcting illegal acts. , should be submitted in writing. On the one hand, these written materials are the records of lawyers' defense process. On the other hand, if it is put into the file, it will also become the basis for future case review. In the case of She * Lin, when the case is misjudged, you can check the file to see if the lawyer has put forward the corresponding defense opinions and whether the case-handling organ has adopted them, so it is clear at a glance.
Fifth, the exercise of other right of defense. In fact, the lawyer's right to defense is still exercised in the investigation stage. For example, learn from the case-handling organs about the alleged crimes and places of detention of the suspect, learn from the case-handling organs about the case, communicate with the case-handling units in time about the fact that the suspect is not at the scene of the crime or has no criminal evidence or clues, and have the right to keep other criminal acts committed by the suspect confidential, so I won't go into details here.
Although the reform of the new criminal procedure law is not satisfactory in one way or another, it has made progress in some aspects after all. We expect that the reformed areas can be preserved and truly implemented. Step by step, even if it is very slow, it will be closer to the legal society step by step.